Surrogacy and homophobia: India bans gay parents

Aditya Advani always knew that he wanted to have children. He also knew he was gay. Twenty years ago gay marriage was just a fantasy. Few gay couples had children – whether their own or adopted – even in the US where Advani had emigrated. But that did not deter him from bringing up the subject with potential boyfriends such as Michael Tarr, the man who is now his partner.

“The first question I asked Michael on our second date was do you want to have children?” he remembers. At one point, he’d considered selling property to make his dream come true.

Last year Advani and Tarr became the proud fathers of twins in Delhi through surrogacy.

“It was about completing our family,” says Advani. “It was not a political thing.”

A gay couple takes oath while applying for a marriage license at Seattle. Representative image. Reuters.

But it is about to become a “political thing” because the Indian government has just issued a diktat about who gets to have children via surrogacy and who doesn’t.

Antithesis of equality

Surrogacy will now require a medical visa. Only a man and a woman who have been married for at least two years will be granted one to come to India to go the surrogacy route. Gay couples and single foreigners are out of luck.

“Aditya and Michael are blessed. They are on the winning side,” says Dr Anoop Gupta, the IVF specialist who shepherded them through the surrogacy process. “If they had been late they would not have been able to have their babies.”

“This is clearly discrimination against same-sex couples,” says Anand Grover, Director of the HIV/AIDS Unit of the Lawyers Collective. “There is a big challenge awaiting the government. It has to be tested in court.”

The Supreme Court is yet to rule on Section 377, the section of the Indian Penal Code that criminalized homosexuality. Until it does, Grover points out, the Delhi High Court verdict from 2009 still stands. That verdict held that Section 377 offended the guarantee of equality enshrined in the Constitution.

“It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster dignity of the very individual,” the justices said unequivocally in their judgement.

“Instead of banning same sex couples from having children, they should have just banned surrogacy as a whole. Why this partiality?” says Dr Gupta angrily. He has had many same-sex couples from abroad come to him in his almost two decades in the business.

Dr PM Bhargava who helped draft the guidelines told the Times of India that Indian Council of Medical Research guidelines recognize only man-woman marriages. But Dr Gupta says the issue has nothing to do with one’s personal opinions about gay relationships.

“When gay couples are being recognized all over the world, we should do it too. The children are usually going to settle back in the country the couple came from anyway.”

The whole affair feels like a mean-spirited exercise in homophobia via bureaucracy.

“Basically they are trying to deny gay people from having children. It’s everyone’s birthright to have a child,” says Advani.

Misplaced priorities

In the name of protecting the child, the government already has stringent rules on who can adopt children from India. That’s slammed the door shut for many gay couples who really want to raise children. Now the government is closing the surrogacy option down for them as well.

In going after gay couples and single wanna-be parents, it’s missing the real issues says Vaishali Sinha who co-directed an award-winning documentary, Made in India, about the rent-a-womb business. Sinha spoke with many surrogate mothers while making her film.

“Overwhelmingly what we heard from the women was the lack of negotiating power and the desire for rights. Their conversations almost reflected also a desire to unionize,” she says. One woman told the story of how a surrogate only received 5000 rupees because she miscarried in the sixth month. Another complained how no one ever read the contract out to her. “If there’s a literate person in the room, they ask them to wait outside,” she said.

Sinha says over and over again women complained about “payment and lack of transparency in contracts.” In her film, the American couple signed a contract saying they were paying $7000 to the Indian surrogate. The surrogate signed a separate contract where she was told she would receive $2000, most of which would be paid post-delivery.

The Harvard Business School is using the film as a case study in their curriculum on Ethics this spring. But the Indian government’s new announcements do nothing to grapple with these thorny problems. “(They) feel misplaced in their priority,” says Sinha. “I don’t know what is the interest of the government in this,” says Dr Gupta who says he makes sure the surrogate mothers he works with are safe and well-compensated.

Surrogacy is big medical tourism business in India. The fee for renting a womb here can be anything between $25,000 and $30,000 which is still one-third of what it costs in the west. The need of the hour was simple safeguards. Instead the home ministry has opted for moral grandstanding.

Two faces of one home ministry

Even more ironic is the fact that just last year the same home ministry refused to argue against the repeal of Section 377 in the Supreme Court. In fact it was deeply embarrassed when Additional Solicitor General PP Malhotra told the court that homosexuality was “highly immoral.” A red-faced Home Ministry official had to rush to court to contradict him. Pressed as to why the government was taking different stands in different courts, the Attorney General admitted, “We have been enlightened by the High Court judgment.”

Now that same home ministry, albeit under a different minister, is putting out blatantly anti-gay guidelines.

“I am not surprised,” says Grover. “Probably some bureaucrat decided and it went through. There is no unity in the government. I don’t know if the home minister even knows about this.”

The government actually has an Assisted Reproductive Technology Bill 2010, arrived at after years of consultation, that it’s never tabled in parliament. Clinics like Dr Gupta’s have been following the guidelines in that draft bill even though it has not become law. Dr Gupta leafs through that document to find the section that clearly allowed unmarried couples and single persons to have children through surrogacy. Instead of making things clearer, the newest announcements have just made them murkier for all concerned.

Advani says it makes him wish there was a gay lobby in India that could oppose a measure like this with full force. He says he didn’t just have his children in India because as he puts it, Indian clinics had “a better package”. “I wanted them to have an Indian sense of identity,” he says. “I wanted to have them here because I have a support network here. My mother is here. My brother is here.” His mother even tracked down Dr. Gupta for him.

Khush ho?

To date it’s been a great experience for Advani and Tarr. Everyone from the neighbours to the household help have been wonderfully supportive. Even officials at the Foreigner Regional Registration Office were friendly. They had never dealt with an Indian and an American gay couple before and asked him to bring Tarr to the office. “They just wanted to see him. I remember them asking curiously ‘aap dono ek doosre ke saath khush ho? (pun unintended).’”

While the country is making baby steps in trying to move ahead, the home ministry has decided to take a big leap backwards, writing in discrimination where none existed.

Despite his disappointment, Dr Gupta sees a glimmer of a silver lining.

“In one way the government is at least acknowledging a gay couple. That’s something,” he says. “In the days to come every country that allows LGBT relationships will have to give recognition to surrogacy.”

And if this new surrogacy ban is overturned it court, the reverse could become true as well.